Conflict of Law: Nullity of Marriage

Contents
Topic
Introduction
Early English Law
Subsequent enactment
Factors leading to nullity of marriage
conclusion
Bibliography

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Introduction
The traditional tests for the validity of a marriage under English law was developed by English courts in the nineteenth
century and stated that a marriage had to be valid (i) where it was performed, by the lex loci celebrationis, and (ii) by the
law of the parties ante-nuptial domicile, usually referred to as the question of essential validity. With respect to the lex
loci celebrationis, the ceremony had to comply with the rules of the place where it occurredthe minister had to be
licensed, a licence obtained by the parties, etc.
In Brook V. Brook1, the House of Lords dealt with the question of essential validity and held that the
marriage of a man to his deceased wifes sister in Denmark was invalid because such a marriage was within
the prohibited degrees of affinity under English law, the law of the parties ante-nuptial domiciles, though
not under Danish law.
The conflicts rules for marriage were tested at the end of WW II. People living in dis-placed persons camps
married without giving much thought to the legalities, and when these marriages were later tested, the
English courts often simply refused to follow the law as laid down by the House of Lords because doing so
would have the effect of invalidating a marriage. The cases are of course not consistent.

Void and voidable marriages

The distinction between void and voidable marriages arose in cases where property was the main issue and
as a result of conflicts of jurisdiction between ecclesiastical and temporal courts. If the marriage could be
civilly attacked after the death of one of the spouses, then it had been a void marriage; if it could not be
attacked, even though canonically invalid, the marriage was voidable but not avoided.
a void marriage is one where, although there may have been some semblance of a marriage, there is in fact a
fundamental flaw in the marriage which means that it is not recognised in the law as valid. Distinguish from
a non-marriage in which the ceremony that the parties undertook was nothing like a marriage and so is of no
legal consequence. With a void marriage the court has the power to make financial orders, redistributing
property between the couple. If the ceremony is a non-marriage the court has no power to redistribute
property and the couple will be treated as unmarried couple. In Hudson v Leigh 2, Bodey J: list of factors
indicating a void or non-marriage:
(a) Whether the ceremony or event set out or purported to be a lawful marriage;
(b) Whether it bore all or enough of the hallmarks of marriage;

1 (1861), 9 H.L.C. 193, 1 E.R. 703

2 [2009] 3 FCR 401
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(c) Whether the three key participants (man, woman, officiating official) believed, intended and understood
the ceremony as giving rise to the status of lawful marriage;
(d) The reasonable perceptions, understanding and beliefs of those in attendance.
A voidable marriage is a marriage which can be canceled at the option of one of the parties. The marriage is
valid but is subject to cancellation if contested in court by one of the parties to the marriage.
A voidable marriage is contrasted with a void marriage, which is one that is on its face unlawful and
therefore legally has no effect, whether or not one of the parties challenges the marriage.
The concept of "voidable marriage" arose from the early ecclesiastical courts which had jurisdiction to
determine what constituted a valid marriage. Some of the recognized impediments were subsumed into the
civil courts which had jurisdiction over the right to and disposition of property.
Common reasons that would make a marriage voidable include those that indicate either party to the
marriage did not validly consent, such as duress, mistake, intoxication, or mental defect.3
The validity of a voidable marriage can only be made by one of the parties to the marriage; thus, a voidable
marriage cannot be annulled after the death of one of the parties.

Early English Laws

-Nullity of Marriage Act,1971
The Nullity of Marriage Act 1971 was the first time in British law that marriage was explicitly defined by
statute as being between a male and a female. A marriage could therefore be annulled if the partners were
not respectively male and female.
The provisions of the Act were incorporated into the Matrimonial Causes Act 1973 and the Act itself was
repealed. The provision that a marriage must be between a male and a female has subsequently been
overturned by the Marriage (Same Sex Couples) Act 2013.

Matrimonial causes Act 1973

Matrimonial causes act lays down the grounds for void and voidable marriages.
Grounds on which a marriage is void: set out in the Matrimonial Causes Act 1973 s.11.

3 Paul J., "The Historical Evolution of the Concepts of Void and Voidable Marriages", 7 J. Fam. L.
297, http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1491&context=facpubs
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(a) that is it not a valid marriage under the provision of the Marriage Acts 1949 to 1986 (that is to say where(i) the parties are within the prohibited degrees of relationship; (ii) either party is under the age of 16; or (iii)
the parties have intermarried in disregard of certain requirements as to the formation of marriage);
(b) that at the time of the marriage either party was already lawfully married;
(c) that the parties are not respectively male and female;
(d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the
time of the marriage domiciled in England and Wales.
Grounds on which a marriage is voidable: set out in the Matrimonial Causes Act 1973 s.12.
(a) That the marriage has not been consummated owing to the incapacity of either party to consummate it;
(b) That the marriage has not been consummated owing to the willful refusal of the respondent to
consummate it;
(c) That either party to the marriage did not validly consent to it, whether in consequence of duress, mistake,
unsoundness of mind or otherwise;
(d) That at the time of the marriage either party, though capable of giving a valid consent, was suffering
from mental disorder within the meaning of the Mental Health Act 1983 of such a kind or to such an extent
as to be unfitted for marriage;
(e) That at the time of the marriage the respondent was suffering from venereal disease in a communicable
form;
(f) That at the time of the marriage the respondent was pregnant by some person other than the petitioner.

Indian laws regarding marriage

In India there is no uniform law of marriage rather personal laws regarding marriage for each religious
community according to the practices followed by them. The rules that effect Christians and Hindus does not
necessarily effect Muslims. For example, polygamy is not valid form of marriage for either Christians or
Hindus but Muslim men can marry up to four women. So for a marriage to be annulled in India it is not as
simple as the English law. You have to first analyze which law binds them. There is also a special marriage
act for people who renounced all faith or does not want to be part of any faith. Hindu Marriage Act 1955,
The dissolution of Muslim marriage acts, Indian Christian marriage act are some of them.

Factors leading to nullity of marriage

-choice of law
Status and capacity
Status and capacity are defined by the personal laws of the parties, namely:

the lex domicilii or law of the domicile in common law states, and

either the lex patriae or law of nationality, or law of habitual residence in civil law states).

The personal laws will usually define status in rem so that it is recognised wherever the individual may
travel subject only to significant public policy limits. Hence, for example, as an aspect of parens patriae, a
state will define the age at which a person may marry. If such a limitation could simply be evaded by the
young person traveling abroad on a holiday to a country with a lower age limit, this would clearly breach the
policy of the "parental" state. The same principle would apply to an adult who wished to create a
polygamous marriage or to evade a restriction on consanguinity. In Family Law as opposed to the Law of
Contract, there is also a strong case for legal capacity to be universally enforced to limit to ability of
individuals to evade normally mandatory rules. The claims of the lex loci celebrationis to apply are weak
given that the significance of the location may be no more than the convenience of their laws to those
wishing to marry.
Validity of the marriage
1. The form of the marriage is governed by the lex loci celebrationis or the law of the place where the
marriage was celebrated or occurred, and is usually considered definitive on whether the ceremony
or legal recognition has been effective to create the relationship of marriage and marital rights (see
nullity).
2. The validity of the marriage is governed by the capacity of the parties to marry each other. Capacity
to become a spouse is usually governed by the domicile of the parties. Thus for example, a 13-yearold does not have the capacity to marry in England, but does have that capacity in Nigeria (Northern
Muslim Community). Likewise, in Canada no person can be "sanctioned" to have multiple spouses.
Lex fori
The lex fori, or proper jurisdiction to adjudicate legal disputes, will usually be the state where the spouses
have sought to make their matrimonial home. This state will usually have a clear and direct interest in the
applications of its policies to regulate the nature of relationships permitted to confer the status of husband
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and wife within their territorial boundaries. It may also attempt to regulate the behavior of those who wish to
cohabit within their territory although this may contravene privacy rights.
Religion
Where worshippers wish to marry according to the tenets of their religion, the state must decide whether that
ceremony will be effective to create a valid marriage. For example, the government may decide whether a
clergy has sufficient authority to declare marriage or whether a civil ceremony will be required.
Alternatively, certain governments only consider a civil marriage celebration as legally binding and regard
the religious ceremony as a "confirmation" of the civil marriage.

The age of marriage

Different minimum age requirements also can lead to problems in mutual recognition of marriages. A
marriage of young children is in some countries deemed to be against the ordre public, minimum ages for
recognition are sometimes set (which may vary from the minimum ages for marriage itself). For example, in
the United Kingdom, the Immigration Rules 1986 were introduced to bar persons under the age of 16 from
entering the UK in reliance upon their status as a spouse. Nevertheless, for other purposes, such marriages
will be recognized as valid so long as the parties had the relevant capacity under their personal laws and the
ceremony was effective under the lex loci celebrationis to create a valid marriage.

Consent
the issue of consent is also considered of fundamental importance. In both English law and Indian law
absence of consent can lead to nullity of marriage. In the English case of Szechter v Szechter, Sir Jocelyn
Simon P. said that for duress to vitiate a valid marriage, it must be proved that:

the will of one of the parties had been overborne by a genuine and reasonably held fear;

this fear was caused by a threat of immediate danger for which the party was not himself or herself
responsible, usually amounting to a threat of physical or fatal injury, or false imprisonment.

The test requiring an immediate danger never matched the practical realities facing individuals where the
consequences of a refusal to marry might not be immediate, but nevertheless serious. In Hirani v Hirani4,
the Court of Appeal considered the case of a nineteen-year-old Hindu woman who was dating a Muslim
man. Her parents told the petitioner that unless she married a Hindu of their choosing, she would be
ostracized socially from her family and left to fend for herself. Under the circumstances, the Court agreed
that the petitioner had acted without full consent in marrying her parents' choice of husband. Thus, it is for
4 (1982) 4 FLR 332
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the courts of all countries to strike a balance between well-intentioned parental authority to arrange
marriages in the face of a reluctant child, and unreasonable threats that would overbear the will of any
reasonable person, while maintaining the trust of local communities whose cultures have included arranged
marriages for centuries. As to transnational recognition, it will be difficult to disturb the validity of the
marriage if no complaint of coercion was made around the time the ceremony was performed in the lex loci
celebrationis or immediately the parties entered the state where proceedings were commenced. It would be
more usual to use the local divorce system to terminate the relationship.

Consanguinity
In U.K there are statues which clearly define prohibited decrees of kinship that voids a marriage. the
Marriage Act 1949, The Children Act 1975, The Marriage Act 1949, The Marriage (Prohibited Degrees of
Relationship) Act 1986, The Marriage (Prohibited Degrees of Relationship) Act 1986, The Marriage Act
1949 (Remedial) Order 2007 all lay down the degrees of prohibited kinship for marriage clearly. Any
marriage coming under this prohibition wont be deemed valid by English law. Whereas in India, different
religions follow different degrees of prohibited relationship. There are groups inside Islamic religion who
follow different degrees of prohibited relationship. There is no uniform code as such in India for
consanguinity. It differs according to the personal laws of the people.

Polygamy
Almost all countries prohibit polygamy. If it is in fact legal it is due to some religious practice or custom
followed by some specific sector of the society.
The Matrimonial proceedings act 1972 empowers courts in England, Wales, Northern Ireland and Scotland
to grant matrimonial relief to parties of marriage whose legal system permits polygamy, irrespective of the
fact whether the marriage is in fact polygamous or merely potentially polygamous. 5 Polygamous marriage as
such is not a valid marriage under English law as laid down in Matrimonial Causes Act 1973.
Under Indian law only Muslim men can marry have more than one wife legally. Under the personal law of
Muslims polygamous marriage is seen as valid. But only men can have more than one spouse. If a women
have more than one spouse the marriage would be void.

Same-sex marriage
Marriage (Same Sex Couples) Act 2013 legalizes same sex marriages in England. They enjoy all the rights a
married couple have. But there are still a lot of countries that do not recognize same sex marriage and does
not recognize such marriages for any purpose. In India same sex marriages are punishable under IPC and
considers all same sex marriages as void and does not award them recognition for any purpose. Same sex
marriages are becoming legal across countries with time. Same sex marriages are legal across U.S, Canada
etc.
5 Sec 1,2,3 matrimonial causes act 1973
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Conclusion
Conflict of laws is a rather big problem. Especially when it comes to marriages. Almost all the countries
have some differences as to what makes void and voidable marriages. There is no guarantee that a marriage
that is completely legal in one place should even get any kind of recognition of being a marital union in
another place. English courts have taken a stand of giving matrimonial reliefs to marriages like polygamous
one that are void under English law but the legal system of parties to such marriages allow it. Matrimonial
reliefs are given if the marriage is valid in the partys state and not in the state where the dispute is settled if
the reason why the marriage is void is seen to be void does not go against some core fundamental beliefs of
the dispute resolving state.

Bibliography

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Paras Diwan, Private International Law,4 th edtn

K.B Agarwak, Private International Law in India
Peter Stone, EU private international law
http://www.legislation.gov.uk
http://www.slaw.ca
http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1990&context=articles